DEVILS LAKE – The former Devils Lake detective who fatally shot an unarmed man in the back of his head last summer is suing the city and police department for wrongful termination.

Brandon Potts was dismissed from the department about seven months after fatally shooting 26-year-old Daniel Fuller on July 5, 2018. The city paid Potts about $25,000 during the seven months he was on paid administrative leave.

Fuller’s autopsy ruled his death a homicide, but Ramsey County State’s Attorney Kari Agotness declined to press charges, citing that Potts did not intend to pull the trigger, but instead had an involuntary muscular contraction. Fuller’s family disagrees – pointing to dash camera footage that shows Potts shooting Fuller in the back of the head after striking him several times with the gun during a struggle.

There is an ongoing FBI investigation into whether Potts used reasonable force or if he should be held criminally responsible.

Terry Fuller, Daniel’s father, says he drives to his son’s grave every day. He also stops at the site where Daniel took his last breath. Nothing is fair, he said. The family pressed for the FBI investigation, but said their path toward justice is long – the inquiry may take years.

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Terry Fuller said he believes the lawsuit Potts is filing “is the biggest joke there is.”

“There’s no way taxpayers should have to pay for a murderer,” he said.

What happened?

On July 5, 2018, Potts responded to a 911 call about a potentially armed man breaking into a trailer at 502 12th Ave. S.E. An off-duty officer, dressed in plain clothes without a badge or gun, accompanied Potts to the scene. Potts was also clad in street clothes and, therefore, was not wearing a body camera.

As officers pulled up, they told Fuller to stop but he ignored the command, jumped over a fence and ran. Fuller had a warrant for his arrest in an unrelated matter. His autopsy report indicated he’d been drinking before he fled from police.

Potts saw Fuller in a grassy area near the train tracks. He told Fuller to show his hands and approached him with his gun drawn. Fuller showed his hands, sat down and placed his hands behind his back. As Potts got closer, Fuller started to get up and reached for Potts’ leg as the officer grabbed at his arm. They both fell to the ground.

Another officer was approaching the scene in his squad car and Fuller’s death is captured on dash cam footage that was later released by the Ramsey County State’s Attorney’s Office.

In the video, Potts is seen struggling with Fuller on the ground. He strikes Fuller on the head three or four times with his pistol. Fuller was on the ground when, during or just after the last blow, the gun discharges and he’s shot.

Fuller did not have a weapon.

Criminal charges were not pursued against Potts because “he had probable cause to believe the use of deadly force was necessary,” said a press release from Agotness.

The South Dakota Crime Lab determined Potts’ weapon did not malfunction, but the “gun discharged by Potts pulling the trigger.” An independent analysis referenced involuntary muscular contraction because Potts said he did not know or intend to pull the trigger. The contraction can happen when “certain physical stimuli can cause the muscles of an individual’s hand and fingers to contract, resulting in the unintentional discharge of a firearm that is held in the hand,” the report said.

Agotness’ memorandum said Potts “didn’t intend for it to happen and cannot keep it from happening.” She said there wasn’t evidence of intent.

Who's paying?

Potts was placed on paid administrative leave during the four-month investigation. He remained on leave until he was fired in February.

Marla Fuller, the mother of a Devils Lake man who was fatally shot by police in July, hugs a supporter after giving a speech during a protest outside of the Devils Lake City Hall on Monday, Sept. 17, 2018. (Sydney Mook / Grand Forks Herald)
Marla Fuller, the mother of a Devils Lake man who was fatally shot by police in July, hugs a supporter after giving a speech during a protest outside of the Devils Lake City Hall on Monday, Sept. 17, 2018. (Sydney Mook / Grand Forks Herald)
Fuller’s family spoke out at a city commission meeting in February, pleading with officials to bar Potts from returning to the police force.

“We cannot allow something like this to happen because the citizens of this great community, we put the utmost respect in our law enforcement officials,” Fuller’s mother, Marla Fuller told commissioners in February. “Disregarding this man's actions will forever taint the image of the Devils Lake Police Department.”

On Feb. 21, Potts received a letter from Police Chief Joseph Knowski that terminated his employment. The city spent roughly $25,000 paying Potts during the seven-month leave because he made $3,356 monthly as a detective.

“The situation has eroded so much that it is now evident that there is simply no set of circumstances in which you can effectively perform your duties as a police officer within the community of the city of Devils Lake,” the letter said. “Doing so may lead to further problems for other officers to effectively perform their duties and may tarnish the reputation and standing of the police department within this small North Dakota community.”

A formal lawsuit was filed last week accusing the police department and city of wrongful termination. Potts is seeking an excess of $50,000 to cover “the loss of considerable past and future earnings and benefits.” Potts also lost his job as an instructor at Lake Region State College because he was no longer employed by the department.

Potts moved to Bismarck because “the circumstances surrounding his termination precluded Potts from obtaining employment in law enforcement in the Devils Lake area,” according to the lawsuit. He halted construction on a home he was building and defaulted on his loan, the court document said. Potts is now taking an online program to earn a bachelor’s degree in accounting through the University of Minnesota that costs about $47,000, according the the lawsuit.

He alleges his termination violates public policies, which favor self defense.

“The termination of a law enforcement officer’s employment on the sole or primary grounds that the officer was defending himself against danger of imminent bodily injury is against the public policy of North Dakota and is a valid and necessary exception to the employment at will doctrine,” the lawsuit said.

Potts' lawyer could not be reached Friday for comment.

The defendants denied Potts’ claims in a formal answer. Knowski could not be reached Friday for comment.

Terry Fuller said he is disgusted by the wrongful termination lawsuit. He doesn’t want Potts to receive a settlement but said “my gut feeling is those guys over at city hall are going to cave and pay him off.”

As Terry Fuller drives to what he calls the “execution site,” he passes Knowski’s house. Devils Lake is a small community and Fuller said the healing is far from over.

The family plans to file their own lawsuit against officials, Fuller said, but they are waiting until the FBI investigation concludes.

“I’m very, very confident the FBI will charge him,” Terry Fuller said. “And I hope they go after other people that are involved with this.”